Ross Ulbricht Pulls Out A 4th Amendment Defense For Pretty Much Everything

from the that's-not-going-to-work dept

Ross "Dread Pirate Roberts" Ulbricht, the alleged mastermind behind The Silk Road dark marketplace, has been trying (and failing) with some creative legal theories. The latest is that his lawyers are basically arguing that almost all of the evidence was collected in ways that violate the 4th Amendment. We're certainly big proponents of the 4th Amendment around these parts, and frequently lament the way the courts and law enforcement have chipped away at it (sometimes with dynamite). However, the arguments here seem like a massive longshot.

The key to the argument is that it's somewhat murky how law enforcement found the Silk Road servers, and so Ulbricht is arguing that there was likely a 4th Amendment violation there, spoiling much of the rest of the evidence against him.

However, that event – location of the Silk Road Servers – is shrouded in mystery, as the
means and manner in which that discovery was accomplished has not been disclosed – indeed, it
was not disclosed in any of the applications for warrants or other orders to search and seize ESI
and other material in this case.

That presents a threshold issue: whether locating the Silk Road Servers was the result of
legitimate investigative technique(s), or the product of some unlawful intrusion, digital or
otherwise. It also presents the issue whether the magistrate judges who approved the searches
and seizures were remiss in not at least satisfying themselves that the information upon which the
warrant was based was lawfully obtained and/or reliable.

The more specific claims make some interesting points, but are likely to fall flat:

In addition, many of the warrants – in particular, those directed at Mr. Ulbricht’s laptop,
and his gmail and Facebook accounts – constitute the general warrants abhorred by the Framers,
and which led directly to the Fourth Amendment. The wholesale collection and study of Mr.
Ulbricht’s entire digital history without limitation – expressly sought in the warrants and granted
– represent the very type of indiscriminate rummaging that caused the American colonists so
much consternation.

The argument, not surprisingly, is relying on the new Supreme Court ruling in the Riley / Wurie cases, about the need for a warrant to search mobile phones. That is an important ruling bringing back certain 4th Amendment protections, but Ulbricht's lawyers are really trying to stretch it to argue that it applies to the warrants issued against him.

There may be some real issues in how the feds got access to the Silk Road servers, but to claim that other searches (and even actual warrants) were unconstitutional in light of Riley would require an almost ridiculously broad reading of the Riley ruling. That case involved searches of mobile phones that were on someone's person -- not a coordinated effort to track down someone they believed to be a criminal.

I do think there are some real issues with the case against Ulbricht, mainly focused on his liability for the actions done by users of Silk Road, but these kinds of broad attempts to throw anything at the wall are likely to be rejected, and can actually piss off judges who feel that lawyers are just trying to throw up a smoke screen.

There are important cases to be had in challenging various digital searches and how the 4th Amendment applies to them, but it's doubtful that this is a particularly good test case.

This guy is truly a class act, the type of defendant prosecutors love to deal with because he sets caselaw heavily onto the side of the prosecution for future cases.

What really has me laughing is that initially his defense was "I am not the dread pirate you are seeking", essentially claiming not to be him. Now however his defense seems to hinge on knowing that the servers were well hidden and that the only way they could be found was by violating his personal 4th amendment rights. Wait, if he's not the guy, then why would it matter?

I doubt the judge will be impressed with all of this. It appears to be the legal version of throwing it all at the wall and hoping something, anything sticks. Each failure along the way helps to set the rules for future cases. Just like some others, he could potentially set back the rights of others for ages as a result of trying to beat the legal system with what could be seen as poor arguments.

The "throw everything at the wall and see if it sticks" part is doomed to fail, but apparently the standard MO for a good attorney.

But the big 4th amendment issue is the real deal: A "miracle" is not a justification for a warrant, yet the FBI's discovery of the silk road server is just that, a miracle. EVERYTHING the FBI has depends on that initial server discovery. That even now they have not said how to the defense is a big deal, and should worry everyone.

I want to see DPR convicted, but unless the FBI found those servers legitimately, in order to protect the liberties of the rest of us, having DPR go free is acceptable to me.

Historically....

We have always allowed 4th Amendment breaches of the constitution.

Ever since the Constitution was amended to apply to the states as well as the central government, the state itself has constantly assaulted the Document because... "Save the Children" or "Political Expediency".

The first steps were to muddle the meanings of what the constitution meant... now there is no requirement to muddle, we are now blatantly misrepresenting what it means to advance a political ideology. This happens on both the right and the left... but more so with the Democrats.

Dread Pirate Roberts

We're fast approaching the point where the feds can just plop down "evidence" and its source or how it was collected can't be questioned because "it's classified". Without being able to examine the methods by which it was discovered and collected, how can anyone be sure that it isn't completely fabricated?

This is exactly what the fourth amendment and warrants were intended to prevent. Law enforcement is supposed to have a legally obtained and valid reason for getting a warrant. What's to stop a cop from breaking into someone's home, snooping around and then getting a warrant to "find" the evidence that he already knows is there? They're supposed to have to convince a judge that they have a valid reason for believing that they will find evidence there. "I can't tell you" shouldn't be a valid excuse.

Sadly, many judges today don't seem to care how many rights the LEOs violate.

Re:

What's to stop a cop from breaking into someone's home, snooping around and then getting a warrant to "find" the evidence that he already knows is there?

Police officers, if inside your home legitimately can and do observe things which may play into a warrant. It's one of the reasons why the paranoid types generally say never let the police into your home.

Oh, and before you ask, the legitimate reasons could be anything from you deciding to report a crime and inviting them in to take the report, or a medical emergency, or something like stopping a crime being committed (such as someone breaking and entering your home) - or for that matter, coming in with the fire department in the case of a fire and seeing something which could lead to a warrant.

Re: Re:

Police officers, if inside your home legitimately can and do observe things which may play into a warrant.

Yes, the "plain sight" rule. I'm talking about a cop coming around while you're not home, picking the lock, and searching your home. Then going to a judge for a warrant and when asked how he knows that you hide your pot under a loose floorboard in the closet under a 50 pound box of magazines, he says "That's classified."

The article is incorrect in saying that his objections are based upon the recent Riley/Wurie cases. Those cases ruled that the police can't search through your data, upon arrest, without getting a warrant. In this case, the police DID get warrants. He is arguing that the warrants did not, as required by 4th amendment jurisprudence, list EXACTLY what they were looking for and how it tied into the specific crime being investigated. The defense is arguing that the warrants were simply to seize and examine the electronics without restriction, hoping to find something incriminating. That would arguably make it a "general" warrant, which is unconstitutional.